Geiger v. Labor and Industry Review Com'n

• Decision Date: 26 September 1990
• Docket Number: No. 90-0002,90-0002
• Citation: 462 N.W.2d 551,158 Wis.2d 353
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Charles J. GEIGER, Jr., Plaintiff-Appellant, v. LABOR AND INDUSTRY REVIEW COMMISSION, Defendant-Respondent. GEIGER FREIGHTWAYS, INC., Plaintiff-Appellant, v. LABOR AND INDUSTRY REVIEW COMMISSION, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 551

462 N.W.2d 551

158 Wis.2d 353

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

Charles J. GEIGER, Jr., Plaintiff-Appellant, v.LABOR AND INDUSTRY REVIEW COMMISSION, Defendant-Respondent.

GEIGER FREIGHTWAYS, INC., Plaintiff-Appellant, v.LABOR AND INDUSTRY REVIEW COMMISSION, Defendant-Respondent.

No. 90-0002.

Court of Appeals of Wisconsin.

Sept. 26, 1990.

Appeal from a judgment of the circuit court for Manitowoc county: Allan J. Deehr, Judge.

Circuit Court, Manitowoc County.

AFFIRMED.

Before NETTESHEIM, P.J., and BROWN and SCOTT, JJ.

PER CURIAM.

Geiger Freightways, Inc. and Charles J. Geiger, Jr.(collectively, Geiger) appeal from a judgment affirming the decision of the Labor and Industry Review Commission that Geiger was an employer and thus subject to the assessment of unemployment compensation tax.Geiger owned seven trucks and leased seventeen additional units from Pirkle Freight Lines, Inc.The question before the commission was whether Geiger was the employer of the drivers who operated the trucks.Geiger argued that Pirkle was the employer.The commission disagreed and determined that the drivers were employed by Geiger.The circuit court upheld the commission's decision.We affirm.

Geiger and Pirkle were parties to several lease arrangements.Geiger leased vehicles that it owned to Pirkle.In addition, Pirkle leased trucks from a third-party and re-leased the same vehicles to Geiger, who in turn leased them back to Pirkle.The upshot of the multiple leases was to place responsibility for hiring drivers and truck maintenance for both owned and leased units on Geiger.

All units were operated under Pirkle's hauling authority.Pirkle dispatched drivers.The drivers were subject to Pirkle's regulations during a trip.For example, a driver was required to call Pirkle on a daily basis.Drivers carried a fuel card issued by Pirkle.Pirkle retained the authority to cancel the card and effectively shut a driver down if the driver violated Pirkle's regulations.

Pirkle paid Geiger different amounts depending on the contents and destination of the loads.Geiger, in turn, would pay the drivers.A driver's pay was determined by Geiger, with no input from Pirkle.

Other facts will be stated below as necessary.

On appeal, this court's standard of review is the same as that of the circuit court.Boynton Cab Co. v. DILHR, 96 Wis.2d 396, 405, 291 N.W.2d 850, 855(1980).Findings of fact made by the commission are conclusive if supported by credible and substantial evidence in the record.Sec. 102.23(6), Stats. Credible and substantial evidence is evidence which is "relevant, credible, and probative ... [and] upon which reasonable persons could rely to reach a conclusion."Princess House, Inc. v. DILHR, 111 Wis.2d 46, 54, 330 N.W.2d 169, 173(1983).This court does not weigh opposing evidence but rather reviews the record to determine whether credible and substantial evidence supports the commission's determination.Graebel Moving & Storage of Wisconsin v. LIRC, 131 Wis.2d 353, 356, 389 N.W.2d 37, 39(Ct.App.1986).A reviewing court will sustain the commission's conclusion of law, if the conclusion is reasonable, even if an alternative view is equally reasonable.Eaton Corp. v. LIRC, 122 Wis.2d 704, 708, 364 N.W.2d 172, 174(Ct.App.1985).

We first note that Geiger does not challenge the commission's conclusion that the drivers were "employees" for unemployment compensation purposes.While Geiger contended at the commission level that the drivers were independent contractors, the commission's rejection of that position was not challenged on judicial review.Thus, the question is limited to whether Geiger was their employer.

Geiger's first challenge to the commission's determination focuses on its belief that it was an employee of Pirkle.Geiger contends that it would be liable for unemployment contributions only if it is found to be an independent contractor.

Geiger relies on sec. 108.02(12)(e), Stats., and the supreme court's ruling in Robert Hansen Trucking, Inc. v. LIRC, 126 Wis.2d 323, 377 N.W.2d 151(1985).Geiger's reliance is misplaced.

Section 108.02(12)(a), Stats., defines "employe" as "any individual who is or has been performing services for an employing unit, in an employment, whether or not the individual is paid directly by such employing unit."Section 108.02(12)(e) excludes from that definition "a contractor who, in fulfillment of a contract with an employing unit, employs any individual in employment for which the contractor is subject to the contribution or reimbursement provisions of this chapter."The purpose behind subsection (e) is "to provide expressly that contractors who are covered employers are not to be considered employees of the principal.In excepting contractors who are covered employers from being considered employees, [sec. 108.02(12)(e) ] contemplates that these contractors will be liable for the unemployment compensation of the individuals they hire."Hansen Trucking, 126 Wis.2d at 337, 377 N.W.2d at 157.

In the language of sec....